ASIM KUMAR RAY, J. - (1.) THIS revisional application is directed against the order dated March 7, 2013 and July 16, 2013 passed in Title Suit No. 62 of 1986 by learned Civil Judge (Senior Division ), 7th Court, Alipore whereby an application giving clarification in reply to an order dated January 14, 2013 and an application praying for acceptance of the amended plaint filed by the plaintiffs/petitioners were rejected .
(2.) PETITIONERS as plaintiffs filed Title Suit No. 62 of 1986 for specific performance and damages. Defendants/opposite parties entered appearance and are contesting the suit. During pendency of the suit plaintiffs/petitioners filed application under Order 6 Rule 17 of the CPC for substitution of petitioner No. 3 as the plaintiff No. 3 in place and stead of Bhutoria (India) Limited as the said company got amalgamated with the petitioner No. 3. The said application was allowed by an order dated July 10, 2007. The petitioners filed amended plaint on September 3rd, 2007. On February 14, 2012 the opposite party No. 3 filed an application under Section 340 of the Code of Civil Procedure against the petitioner No. 1. On September 6, 2012 petitioners noticed some typographical errors and omissions in the amended plaint. The petitioners subsequently filed a corrected amended plaint. on October 5,2012 an application was filed praying for acceptance of the said corrected amended plaint in place of the amended plaint filed on September 3, 2007. On October 5, 2012 the petitioner field another application under Order 6 Rule 17 in the said suit praying for amendment of the plaint. In the mean time examination -in ­chief and cross -examination of petitioner No. 1 by the opposite party No. 1 have been completed and cross -examination of petitioner No. 1 by the opposite party No. 2 has been partly done. On January 14, 2013 the Court passed an order directing the plaintiff No. 1 to clarify his status as it has been revealed from the record that the amended plaint has been verified by the plaintiff No. 1 but the record reveals that on earlier occasion one Manmal Bhutoria represented plaintiff No. 2 and 3 as the Director and Principal Officer verified the application. On February 14, 2013 petitioners filed an application clarifying the status of the plaintiff No. 1. The Court passed an order rejecting the application for clarification but there was no order regarding application for acceptance of the corrected amended plaint. On April 3, 2012 petitioners filed an application under Section 151 of CPC praying for review or reconsideration of the order dated March 7, 2013. On July 16, 2013 the Court passed an order rejecting the application for acceptance of corrected amended plaint filed on 5th October , 2012, application praying for review and application under Order 6 Rule 17 filed on October 5, 2012 were rejected . In this background this is the revisional application. Mr. Sabyasachi Bhattacharjee, learned advocate appearing for the petitioner submits in the tune of the revisional application. It is his contention that the application under Order 6 Rule 17 of the CPC filed on 22nd March, 2007 praying for amendment of the plaint was allowed. That order was a final order. The petitioner filed the amended plaint. Subsequently it was noticed that the amended plaint had some typographical mistake. Petitioners filed application praying for withdrawal of the first amended plaint and acceptance of the second amended plaint. The Court observed that the amended plaint has been verified by plaintiff No. 1 but the record reveals that on earlier occasion one Manmal Bhutoria represented plaintiff No. 2 and 3 as Directors and signed on behalf of plaintiff No. 2 and 3 in the verification. The petitioner has clarified the status of petitioner No. 1 /plaintiff No. 1 and has stated that in the application dated March 22, 2007 (application under Order 6 Rule 17 CPC) it was stated that Manmal Bhutoria is dead. The said application was verified by petitioner No. 1 for self and for petitioner No. 2 and 3 as Directors . But the Court has rejected the clarification application, application under Order 6 Rule 17, the application for acceptance of corrected amended plaint, application for review and application under Order 6 Rule 17 filed on October 5, 2012. The order impugned may be interfered with and set aside.
(3.) LEARNED advocate appearing on behalf of the opposite parties has contended that first amended plaint differs with the second amended plaint. The error appearing from the first amended plaint was not a typographical mistake. There was lack of due diligence on the part of the plaintiff at the time of filing first amended plaint. The opposite party filed an application under Section 340 of the Cr P C against the petitioner No. 1. The cross - examination of PW 1 has been completed. The amendment sought for at that stage cannot be allowed. Second amended plaint was filed to destroy the cross -examination and to defeat the petition under Section 340 of the Cr P C . He has relied on decisions reported in 2012(1) Supreme 568 (J. Samuel and Ors. ­vs - Gattu Mahesh and Ors. ), 2001 (3) CHN 584 (Life Insurance Corporation of India ­vs - Mirta Lina Pvt. Ltd. ) and 2013 (3) CLJ (Cal ) 269 (Faroja Bibi & Ors. ­vs - Sk.Mustafa Ali & Ors.) .;